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CR.A/1094/2010 1/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1094 of 2010
=========================================================
STATE
OF GUJARAT,FOR & ON BEHALF OF S A PATEL,FOOD INSPECTOR -
Appellant(s)
Versus
BHAVANDAS
THARUMAL JENVANI & 1 - Opponent(s)
=========================================================
Appearance
:
MR
HL JANI Ld. APP for Appellant(s) : 1,
None for Opponent(s) : 1,
MR
DK MODI for Opponent(s) : 2,
MR MD MODI for Opponent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 03/02/2011
ORAL
ORDER
1. The
State has preferred this appeal under sec. 377 of the Code of
Criminal Procedure for enhancement of the sentence imposed upon the
respondents by the learned Chief Judicial Magistrate, Himmatnagar
vide order date 20.3.2010 passed in Criminal Case No. 650 of 2006,
whereby, the learned Judge has convicted the respondents for the
offence under sec. 7(1) of the Prevention of Food Adulteration Act
and imposed the punishment to be in the Court till rising of the
Court and also imposed a fine of Rs. 1000/-each, in default, to
undergo S/I for seven days, which is impugned in this appeal.
2.
The brief facts of the prosecution case are as under:
3.
It is the case of the prosecution that on 24.8.2005 the Food
Inspector has visited the shop of respondents-accused, and has taken
the sample of coconut biscuits. Thereafter, he purchased the same and
paid the price, cash memo was taken and after following the necessary
procedure, the sample was sent to the Public Analyst, Vadodara for
analysis and as per the report of the Public Analyst, the sample does
not fall within the prescribed rules of the PFA Act. On these facts,
the complaint was filed before the Court, which was numbered as
Criminal Case No. 650/2006 against the respondents. At the time of
trial, evidence was led before the trial Court. The documents were
produced and oral evidence of the witnesses were also recorded by
the trial Court and after considering the oral as well as documentary
evidence, the learned Magistrate has passed the order, which is
impugned in this appeal.
4. Heard
Mr HL Jani learned APP for the State and Mr. DK Modi learned advocate
for the respondents. Both the learned advocates have fairly submitted
that as per the provisions of law, the impugned order passed by the
learned Magistrate is not proper and, therefore, the matter requires
to be remanded back to the trial Court for a fresh trail.
5. I
have considered the submissions made by the learned advocates
appearing for the parties and perused the papers produced on record.
It appears from the record that the sentence imposed by the trial
Court is lesser than the sentence prescribed in the law, which is
not proper and therefore, I am of the opinion that this is a fit case
to remand the matter back to the trial Court for a fresh trial with a
direction to the learned Principal District Judge, Himatnagar to
place this matter before some other learned Senior Judge and not
before the same learned Judge who has passed the impugned order and
dispose of the same within a period of six months from the date of
receipt of this order.
6. In
the result, this appeal is disposed of accordingly. The impugned
judgment and order dated 20.3.2010 passed in Criminal Case No.
650/2006 by the learned Chief Judicial Magistrate, Himatnagar is
quashed and set aside. R & P to be sent back to the trial Court,
forthwith.
7. The
matter is remanded back to the trial Court for a fresh trial with a
direction to the learned Principal District Judge, Himatnagar to
place this matter before some other learned Senior Judge and not
before the same learned Judge who has passed the impugned order and
dispose of the same within a period of six months from the date of
receipt of this order
(Z.K.
SAIYED, J.)
mandora/
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